Further to the last post on an infringement of the right to a fair hearing, the Burhoff online blog reports (in German) on a decision (PDF) of the Bundesgerichtshof (Federal Court of Justice) against a criminal chamber of Aachen Regional Court (Landgericht). The criminal chamber did not supply the defendant with a translation of the indictment until the seventh day of the trial and then refused leave to stay the proceedings. The two defendants, from the Dominican Republic, were charged with drug dealing in a not small quantity and the decision of the BGH was based on Article 6 of the European Convention on Human Rights (for any British journalists reading, that has nothing to do with the EU).
Under the E-Commerce Regulations, an ISP can escape liability for content because it is a mere conduit.
Conduit in the figurative sense: the OED says
4. fig. The channel or medium by which anything (e.g. knowledge, influence, wealth, etc.) is conveyed;
But currently in the USA, there is an argument as to whether an interpreter or translator is a mere conduit.
I suppose that’s how some customers see us.
When the police use an interpreter in an interrogation and do not record the defendant’s words but only the translation of them into English, can the interpreter be challenged legally? Lawrence Solan writes in his Balkinization blog:
An interesting question concerning forensic linguistics is making its way through the appellate courts: When the police use an interpreter during an interview (or interrogation) of a suspect who later becomes a defendant in a prosecution, and the defendant’s words in her original language are not recorded, does the defendant have a constitutional right to confront the interpreter? As a cost-saving measure, more and more law enforcement agencies, and some courts, have been retaining services that interpret the interview over the telephone. One of them, Language Line Solutions. http://www.languageline.com/, has found itself in the middle of this constitutional question.
courts should be more realistic in their understanding of what interpreters and translators can do. First, courts should stop relying on the “conduit” theory of translation. Compare two reputable translations of any work of literature. They will be similar in some ways, different in others. To the extent that word choice matters in the context of a criminal prosecution, nuanced differences may affect a case’s outcome. Second, interpreters make errors. The legal system should recognize this. Third, courts should not accept as accurate representations that the entire professional staff of a private firm retained by the government is dispassionate and of high professional character. Surely the defendant need not accept such representations.
Solan recommends that at least the original statements should be recorded as potential evidence.
Miklas Scholz, professor of civil engineering at Salford University, caused a trial in which he was a juror to collapse because he researched the defendant on the internet. He claims that when the judge told the jurors they would be ‘in hot water’ if they did this, he did not understand what was meant.
The Independent writes (with mugshot):
“I just did not understand what the phrase ‘in hot water’ meant in this context. It just seems meaningless,” he told the Daily Telegraph.
“I have written many journals so I am used to writing in proper English and proper sentences and wouldn’t use words and phrases like being ‘in hot water’ to describe being in trouble because it is not correct.
“They don’t mean anything, definitely not in the context of looking on the internet.
“You would say someone is ‘in trouble’ and the judge should have said that.”
The Trademark and Copyright Law Blog has – or had a few weeks ago – a post on all the court cases relating to Harry Potter – Harry Potter Lawsuits and Where to Find Them, for example:
Smith v. Rowling. In 2010, Elijah Smith brought a pro se claim against Rowling in the Eastern District of California. The allegation was simple: “I’m the author who write Harry Potter. . .” As to the relief sought, Mr. Smith stated:
Mrs. J.K. Rowling will make a great teacher . . . I’ll be gladly to help Mrs. J.K. Rowling after she pay me $18 billion.
Mr. Smith’s complaint was dismissed shortly after it was brought, and his request to proceed in forma pauperis was denied. Mr. Smith, who at the time the complaint was filed resided in a California state prison, has brought similar claims against Michael Jackson, Lil Wayne, Snoop Dog and Sam Cooke.
(via Law and Magic Blog)
And Mark Liberman at Language Log links to an article on a court being invited to consider corpus linguistics in deciding the meaning of a term (to discharge a weapon), although perhaps the right judge did not win the argument: “Linguists have a name for this kind of analysis” . The linked article is by Gordon Smith in the Conglomerate: Corpus Linguistics in the Courts (Again).
What is this?
The mere sight alone promises curiosity: six men, seated, two women, instruments on their laps which look like newly-hatched baby guitars. Ukulele orchestra is the name of this bizarre appearance and wherever it plays it elicits frenetic applause from the audience everywhere.
It could almost be the Ukulele Orchestra of Great Britain.
British ukulele players indeed.
But what is that tell-tale touch of Denglish doing there?
Don’t miss it !!! , judged the SWR television. The Stuttgarter Zeitung titled ” The Ukulele rocks”, the Mannheimer Morgen spoke of a “brilliant performance of musical cabaret”, the Frankfurter Allgemeine Zeitung thought it was a “magic moment of musical comedy” and for the “Heilbronner Stimme” the whole show was “just great fun”. The musicians from London, Edinburgh, Nottingham and Glasgow just know how to capture the audience wherever they go.
But it doesn’t really matter, it is not going to be much different from the real thing.
You’d think they could have found a German or two, though.
The Intellectual Property Enterprise Court, part of the Chancery Division of the High Court, had to decide whether the United Kingdom Ukulele Orchestra, a German set-up with British players, had infringed the Ukulele Orchestra of Great Britain’s community trade mark and committed passing off and infringement of copyright.
The trade mark was not held to be distinctive, so the claim failed, except with regard to passing off.
UKUO was set up by Mr Clausen, his business partner Mr Tings and Mr Moss in 2009. The three of them agreed upon the name. Mr Clausen admitted that at that early stage he knew about UOGB and informed himself about them by looking at their website. He must have known of their style of dress and the nature of their performances and that by 2009 they had enjoyed a good deal of success, particularly in the UK and Germany. Mr Clausen must have known that the concert services to be provided by UKUO were similar to those of UOGB. He must also have known that as a matter of language ‘The United Kingdom Ukulele Orchestra’ would to most people mean very much the same thing as ‘The Ukulele Orchestra of Great Britain’, not least in Germany where UKUO was to be based.
In my view, in those circumstances Mr Clausen and his colleagues either knew or ought reasonably to have known that from a commercial standpoint they risked objection from UOGB. In pressing ahead without seeking the sanction of UOGB or any kind of accommodation with UOGB, they acted outside honest practices within the meaning of art.12(b).
There is an account of the case at The IPKat, which concludes:
Ultimately only the claim under passing off succeeded, and UOGB’s mark was deemed invalid. This Kat is by no means an aficionado of small instruments, and believes the fight was a surprising one, seeing as the market for ukulele performances cannot be that big (readers more inclined in this area of music can correct me here, of course). In the end, the case seems shut, and the two orchestras just might have to get along for the foreseeable future.
I must admit that my attempts to learn the ukulele were fun, particularly in the classes of the redoubtable Pete of the Duke of Uke, but the idea of a large number of ukuleles strumming away in unison seems a bit of a dead end.
Thank goodness the Supreme Court has ruled that Prince Charles’s ‘black spider memo’ letters to parliament can be disclosed:
full judgment and press summary as PDFs on the Supreme Court site.
Judgment read out on youtube:
R (on the application of Evans) and another v Attorney General
This relates to letters predating the coalition legislation under which the royal family are exempt from freedom of information law: see 37 here (PDF).
But attention quickly concentrated on the use of an exclamation mark in the judgment (fortunately in a dissenting opinion):
LORD WILSON: (dissenting)
168. I would have allowed the appeal. How tempting it must have been for the Court of Appeal (indeed how tempting it has proved even for the majority in this court) to seek to maintain the supremacy of the astonishingly detailed, and inevitably unappealed, decision of the Upper Tribunal in favour of disclosure of the Prince’s correspondence!
Jack of Kent on Twitter:
Jack of Kent @JackofKent
So Lord Wilson has brought a long distinguished judicial career to an end by using an exclamation mark in a judgment pic.twitter.com/s8KF8QgMEJ
Andrew Hammel has a suspicion that the German media are keen to find fault with what they believe to be the US justice system, while overlooking comparable shortcomings of the German justice system. Goodness gracious – is he allowed to publish that kind of thing?
Andrew is looking for evidence in the German-language press:
So what I am looking for is articles in the German-language press by Germans which deal with potential justice problems in courts in German-speaking countries including:
(1) wrongful convictions;
(2) racial, ethnic, or religious disparities in conviction rates or sentencing;
(3) allegations of racial or ethnic or religious bias among German prosecutors and professional or lay judges;
(4) interviews with prisoners currently serving prison sentences in Germany who claim that they are completely innocent of the crimes of which they were convicted; and/or
(5) detailed examinations of systemic problems in German criminal justice or prisons, things such as underfunding, outdated regulations, disproportionate penalties, or the use of unreliable evidence.
In interpreting teenage slang for the jury, what could Mark Paltenghi do? Your honour, this is bare hard to understand: Laughter in court as barrister has to translate defendants’ teenage slang into plain English
A barrister had to translate text messages sent between teenagers into plain English in court after they included slang like ‘bare’ – meaning really- and ‘bait’ – meaning blatant – for the judge.
During the shooting spree in Dagenham, the group are said to have sent text messages to each other, which were read out by the prosecution along with the ‘translations’.
In one message, sent by the youngest defendant who is 16, to a contact called ‘female boss’, he wrote: ‘Hurry up I’ve got bare haters around me now.’
Prosecutor Mark Paltenghi – in his fifties – informed the jury: ‘Next to it in italics you have it re-written.
‘It means: ‘Hurry up, I’ve got a lot of people who don’t particularly like me here.’
Another text read: ‘Hurry up I’ve got a strap on me, this is bare bait’.
Mr Paltenghi told the jury: ‘We believe this means: ‘Hurry up, I’ve got a gun on me, and this is really risky’.’
Defendants Scott Stokes, 20, his brother Jason, 18, Anne-Marie Madden, 25, and 16-year-old who cannot be named for legal reasons, burst into laughter.
Jurors also giggled when Judge Patricia Lees asked the defence barristers: ‘Do you agree with these translations?’
(First seen in Metro headed I’m a barrister, innit)
LATER NOTE: Just in, the report of a witness speaking Sierra Leone creole (Krio) for an hour before anyone in court realized it was not an acoustics problem.
At Language Log, Mark Liberman has a post dated 28.11 and headed Plebgate judgment, in which he reports on his experience as an expert witness, with Peter French appearing for the other side (Mitchell’s).
As is widely known, Andrew Mitchell, the government chief whip, was stopped by police from cycling through a pedestrian entrance in Downing Street and is said to have told the policeman ‘Best you learn your fucking place – you don’t run this fucking government – you’re fucking plebs.’
The language aspect was that there were arguments that the police officer in questio, Toby Rowland, was thought unlikely to invent such an expression, and Mitchell was thought likely to use it.
Mark Liberman had to report on whether the time of the exchange recorded by CCTV cameras was long enough for the words to have been spoken. Both he and Peter French came to the conclusion that the time was long enough. Liberman quotes Archie Bland in The Guardian:
You couldn’t help but be lost in admiration for [Mitting’s] forensic command of the detail: you’d need a memory palace to keep it all straight. And yet it almost all seemed irrelevant. A judgment that took over an hour to read boiled down to the fact that two phonetic experts judged that Mitchell would have had time to say the “toxic phrases”, and that he had told his deputy that he didn’t know what he had said very soon after.
More from the case – full report here – in the Language Log post. Also the commenters get very involved in forms of address in court, starting with whether it was right for Mark to address an English judge as ‘My Lord’.
There’s an article in the Westdeutsche Allgemeine Zeitung (WAZ) on the holdups to the Loveparade case resulting from delayed or erroneous translations by two agencies: Das Loveparade-Verfahren überfordert Englisch-Übersetzer.
21 people died from asphyxiation and 541 were injured at the Loveparade 2010 in Duisburg. It seems that the ground was suitable for 250,000 people and didn’t even reach capacity before there was a crush at the entrance between those coming in and those trying to leave. (Wikipedia German, Wikipedia English).
Apparently it is still not clear exactly how the accident occurred. The court commissioned a report from Professor G. Keith Still, Professor of Crowd Science at Manchester Metropolitan University, presumably to throw light on the sequence of events. This choice of expert witness was criticized as all the documents had to be translated into English for Professor Still and his report had to be translated back into German.
Criticism was directed at the delays in translation by the first agency, and also errors in the translation by the second agency. The second agency was commissioned in June 2012. On Friday November 14, Joachim Schwartz, the presiding judge of the 5th Duisburg Strafkammer, sent out three pages of criticism of errors.
What happened in detail in the translations?
1. We don’t know when the first agency was commissioned, just that June 2012 was regarded as too late. The events took place in June 2010, and after that the documents had to be translated and sent to Professor Still and he had to write his report before any translation could be commissioned.
The article states that the public prosecutors were sometimes unsatisfied with the time they had to wait for translations, and that deadlines were repeatedly breached. This suggests that the first agency was responsible for more than one translation – perhaps the DE>EN ones as well as the EN>DE one.
The report is available online as a PDF (21 pages, contains illustrations and photos). However, there was a later extended report, dated March 2013. This second report can be downloaded from the WAZ site here in four parts.
2. On November 14 the court, as stated above, criticized the second agency’s translation. The public prosecutor’s office is waiting to give the agency a chance to respond.
One part criticized is this (from the second report):
When did the loudspeaker system cease to be effective?
Original, referring to loudspeakers: “Their deployment and use is to inform the crowds but once the entry system failed and the crowds flowed in behind the police lines the situation was already beyond the point of no return.”
Translation: “Deren Verwendung und Einsatz dient der Information der Menschenmenge, aber sobald das Eingangssystem versagte, und die Menschenmenge bis zu den Polizeikordonen geströmt war, hatte die Situation einen Punkt überschritten, wo keine Rückkehr mehr möglich war.”
The translation treats “behind the police lines” as “up to the police lines”. I presume this is important because of the allocation of responsibility.
The court also criticized that the translation was in parts dubious, in parts changed the meaning, and in one place had omitted a complete sentence.
There isn’t enough evidence here to demonstrate a really bad translation. On top of that, the report itself is controversial and much criticized by the defence.
There’s a useful German blog on Loveparade 2010:
Dokumentation der Ereignisse der Loveparade 2010 in Duisburg